Donrich Thaldar | University of KwaZulu-Natal (original) (raw)
Papers by Donrich Thaldar
Humanities & social sciences communications, Feb 10, 2024
After a 3-year development process and several drafts, the Academy of Science of South Africa (AS... more After a 3-year development process and several drafts, the Academy of Science of South Africa (ASSAf) has submitted its proposed Code of Conduct for Research (proposed CCR) to the South African Information Regulator for its consideration and approval. When approved, the proposed CCR will be an important legal instrument that will complement the Protection of Personal Information Act 4 of 2013 (POPIA) in governing research activity in the countryincluding data sharing by South African researchers with their collaborators in other countries. The proposed CCR resolves important issues that were present in previous drafts. However, three important issues require attention: (1) how the identifiability of data subjects is to be determined in research data; (2) how research data can be repurposed for commercial use; and (3) how open access genomic databases should be established in the South African legal framework. In addition, the proposed CCR introduces a new issue: a legally unsustainable exception from POPIA application for genetic data. All these issues considered, the proposed CCR needs revision ahead of its approval by the Information Regulator. Recommendations are made on how to resolve the remaining issues.
The South African law journal, 2024
South African Journal of Bioethics and Law, Dec 19, 2023
This open access article is distributed under Creative Commons licence CC-BY-NC 4.0.
Frontiers in Pharmacology, Dec 13, 2023
The integration of artificial intelligence (AI) into healthcare in Africa presents transformative... more The integration of artificial intelligence (AI) into healthcare in Africa presents transformative opportunities but also raises profound legal challenges, especially concerning liability. As AI becomes more autonomous, determining who or what is responsible when things go wrong becomes ambiguous. This article aims to review the legal concepts relevant to the issue of liability for harm caused by AI in healthcare. While some suggest attributing legal personhood to AI as a potential solution, the feasibility of this remains controversial. The principal-agent relationship, where the physician is held responsible for AI decisions, risks reducing the adoption of AI tools due to potential liabilities. Similarly, using product law to establish liability is problematic because of the dynamic learning nature of AI, which deviates from static products. This fluidity complicates traditional definitions of product defects and, by extension, where responsibility lies. Exploring alternatives, risk-based determinations of liability, which focus on potential hazards rather than on specific fault assignments, emerges as a potential pathway. However, these, too, present challenges in assigning accountability. Strict liability has been proposed as another avenue. It can simplify the compensation process for victims by focusing on the harm rather than on the fault. Yet, concerns arise over the economic impact on stakeholders, the potential for unjust reputational damage, and the feasibility of a global application. Instead of approaches based on liability, reconciliation holds much promise to facilitate regulatory sandboxes. In conclusion, while the integration of AI systems into healthcare holds vast potential, it necessitates a re-evaluation of our legal frameworks. The central challenge is how to adapt traditional concepts of liability to the novel and unpredictable nature of AI-or to move away from liability towards reconciliation. Future discussions and research must navigate these complex waters and seek solutions that ensure both progress and protection.
Frontiers in Pharmacology, Nov 22, 2023
The use of pseudonymised datasets is increasingly commonplace as research institutions seek to ba... more The use of pseudonymised datasets is increasingly commonplace as research institutions seek to balance data utility with data security. Yet, a crucial question arises: How does South Africa's Protection of Personal Information Act (POPIA) govern these datasets, especially given their ambiguous state between deidentification and possible re-identification? A thorough examination of POPIA suggests that the determination of whether a pseudonymised dataset is personal information-and thus whether processing the dataset falls within POPIA's purview-must be informed by the specific context of the responsible party in possession of the pseudonymised dataset. When a research institution retains both the pseudonymised dataset and its linking dataset, the pseudonymised dataset remains identifiable and is thus personal information that falls within POPIA's purview. However, when only the pseudonymised dataset-without the linking dataset-is transferred to another entity, it is non-personal information in the hands of such a recipient, thus freeing the recipient from POPIA compliance. Such a delineation offers research institutions greater flexibility in sharing and using pseudonymised datasets. Importantly, because the original provider of the pseudonymised dataset (who has the means to reidentify the dataset) remains governed by POPIA, the privacy rights of data subjects are not undermined.
Frontiers in Genetics, Oct 1, 2023
The Draft National Open Science Policy, which was shared by the South African government with sta... more The Draft National Open Science Policy, which was shared by the South African government with stakeholders in 2022, is an encouraging step forward as it aims to promote the practice of open science in South Africa through a system of incentives. Since South Africa is constitutionally committed to be an open and democratic society, this approach is preferable to the approach of state control that characterizes the Draft National Policy on Data and Cloud-another datarelated policy initiative by the South African government. However, there is room for improvement in the Draft National Open Science Policy. In particular, it should: (a) rely on the right to freedom of scientific research to strengthen the policy; (b) rectify the omission of ownership from its policy analysis; and (c) retain a clear differentiation between human and non-human genetic data. This will ensure that the final policy is clearly anchored in the South African Constitution, and that the principle of "as open as possible, as closed as necessary" can be applied to human genetic data in a legally well informed and accountable way.
Sustainable development goals series, Dec 31, 2022
South African Medical Journal, Jun 1, 2022
South African (SA) gamete banks and gamete donation agencies do not offer open-identity donors, a... more South African (SA) gamete banks and gamete donation agencies do not offer open-identity donors, as it is generally believed that donor anonymity is a legal requirement in SA. However, analysis of SA statutory instruments and case law shows that this belief is mistaken, and that gamete donation in SA can be anywhere on the spectrum between anonymous and known. Accordingly, open-identity gamete donation would be lawful in SA and can be offered to the public by SA gamete banks and gamete donation agencies.
South African Law Journal, 2022
Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short Palindromic Repeat... more Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) genome editing technology has mushroomed to create a vast and complex patent landscape. However, because of South Africa’s current depository patent system, the South African CRISPR patent landscape contains foundational patents with overlapping claims, as highlighted by the ongoing litigation in the United States between the Broad Institute and the University of California. Both these parties were granted four patents in South Africa. Also, the South African landscape may contain multiple low-quality patents that have the potential to obstruct scientific research in South Africa. The solution in the South African context is threefold, but requires that the Intellectual Property Policy of South Africa: Phase I must first be operationalised to: (a) prioritise CRISPR patent applications for formal examination and substantive search and examination; (b) provide sufficient resources for extracurial patent opposition proceedings regarding all CRISPR patent applications and granted patents; and (c) create certainty by developing an obviousness standard with well-defined parameters. Although CRISPR is not yet advanced enough to fall within the class of life-saving technologies in the short-term, CRISPR may become critical in the treatment and eradication of priority diseases such as HIV/AIDS and tuberculosis. Accordingly, prioritising CRISPR-related patent applications serves the public interest in access to healthcare. By using (a), (b) and (c) in tandem, a triple layer of mechanisms will counter the problems of overlapping claims and of lowquality patents, and hence remove these potential obstructions to CRISPR research in South Africa.
Developing World Bioethics, May 16, 2023
South African Law Journal, 2020
In this case note we make two salient observations regarding the recent Supreme Court of Appeal j... more In this case note we make two salient observations regarding the recent Supreme Court of Appeal judgment in Beukes v Smith. First, the judgment shows that when assessing alleged wrong fulness, the court is concerned with whether the health-care user did in fact provide informed consent, and not with formalities such as making notes of consultations. Secondly, the SCA assumed that the health-care user was using pain medication, and further assumed that she was not attentive during the consultation; hence her version of events was rejected. This line of assumption-based reasoning introduces a new anti-patient prejudice in our law, which is clearly unconstitutional, and should be rectified by the SCA at the earliest opportunity.
Frontiers in pharmacology, Mar 12, 2024
MTA was controversial from the outset (Thaldar, 2020; Thaldar et al., 2020). The notion of the st... more MTA was controversial from the outset (Thaldar, 2020; Thaldar et al., 2020). The notion of the state in a supposedly open and democratic society, forcing the use of a single template onto everyone is clearly suspect. The situation could, however, have been palatable had the SA MTA been a well-drafted document. However, it was not. Thaldar et al. (2020) highlighted several problems with the SA MTA, ranging from misalignment with extant law to absurdly overbroad clauses. The only saving grace was that the SA MTA described itself as a "framework," hence leaving latitude for parties that are legally forced to use it to amend the substantive provisions-and hopefully in the process resolve the problematic aspects (
South African Medical Journal
Bronstein and Nyachowe recently argued that the conditions for the lawful processing of personal ... more Bronstein and Nyachowe recently argued that the conditions for the lawful processing of personal information, as provided in the Protection of Personal Information Act 4 of 2013 (POPIA), do not apply to health research in South Africa. This article critically analyses the authors’ interpretation of section 3(2)(b) of POPIA and challenges two of its aspects.
Bioethics, Jun 17, 2023
In 2021, the WHO Expert Advisory Committee on Developing Global Standards for Governance and Over... more In 2021, the WHO Expert Advisory Committee on Developing Global Standards for Governance and Oversight of Human Genome Editing (the ‘Committee’) published its policy recommendations. It proposes, inter alia, a set of nine values and principles to inform the governance of human genome editing (HGE) and makes recommendations regarding how HGE can be regulated. While these proposals contain valuable contributions to the discourse on the global governance of HGE, they also contain elements that call for heightened attention to the risks of the technology, and a countervailing focus on the potential benefits of the technology is missing. The Committee ostensibly prioritises restricting HGE technology in the interest of society as a collective but, in doing so, neglects to consider the interests and rights of individuals. In this article, we suggest that this approach is imbalanced insofar as it fails to give sufficient weight to the promise of this technology in considering the regulation of risks and disregards the importance of the fundamental liberties underlying the use of HGE in its discussion of values and principles that should guide governance. How this is problematic is illustrated with reference to the Committee's openness to using patents as HGE governance tools and its blanket rejection of ‘eugenics’. It is concluded that while the Committee makes some sensible recommendations on global governance, the Committee's approach of emphasising restrictions on HGE without also giving weight to the value of an open and liberal policy space is not something that liberal democratic states ought to follow.
Frontiers in Genetics
This article revisits the debate on the regulation of human genomic research, with a focus on Afr... more This article revisits the debate on the regulation of human genomic research, with a focus on Africa. The article comprehensively examines the concept of genomic sovereignty, which was invoked mainly in the global South as a conceptual framework for state regulation of human genomic research. It demonstrates that genomic sovereignty has no utility value in human genomic research as it violates the rights of individuals and researchers. By analysing Mexico’s regulatory approach based on genomic sovereignty and a divergent regulatory approach, viz Finland’s human genomic research framework, we show that a human rights approach is more promising as it aligns with the state obligations under the right of everyone to participate in and benefit from scientific progress and its applications in international human rights law. We conclude by recommending that African states should anchor regulation of human genomic research on a human rights framework based on the right to science.
South African Journal of Bioethics and Law
Background. South African surrogacy law includes a provision, known as the genetic link requireme... more Background. South African surrogacy law includes a provision, known as the genetic link requirement, that commissioning parents must use their own gametes for the conception of a surrogate child. As a result, infertile persons who cannot contribute gametes for the conception of a child are prohibited from accessing surrogacy as a way to establish families. The genetic link requirement was previously the subject of a constitutional challenge, but the challenge was rejected by a divided Constitutional Court bench with a seven-to-four majority. The genetic link requirement is again being challenged in a new lawsuit.Objective. In light of the history of the issue, this article investigates the viability of relying on infertile persons’ right to family life in the new lawsuit. Method. The investigation takes the form of a human rights analysis.Results. The right to family life was not considered in the previous case. As such, the right to family life constitutes a new legal issue that fa...
Humanities and Social Sciences Communications
The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surro... more The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surrogacy agreements before the start of the surrogate pregnancy. If such confirmation is granted by the court, actions taken in the execution of the surrogacy agreement are lawful, and the agreement itself is enforceable. Against this background, the question has arisen: is it lawful to perform in vitro fertilisation (IVF) before confirmation of the surrogacy agreement? This is a salient question: In circumstances where egg retrieval needs to take place in anticipation of surrogacy, and where sperm is available but where the surrogacy agreement has not (yet) been confirmed, there are significant clinical advantages to first creating embryos through IVF before cryopreservation—rather than cryopreserving the eggs. However, in the recent case of Ex ParteMCM, the court held that it is unlawful to perform IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed....
Stellenbosch Law Review
The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor wh... more The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-c...
Potchefstroom Electronic Law Journal
Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South Afri... more Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South African literature on the topic. The limited available research suggests that direct-to-consumer genetic testing is unregulated. However, we suggest that direct-to-consumer genetic testing is indeed regulated, and unusually so. The first step in the process – the collection of a saliva sample by consumers themselves – is unlawful on a plain reading of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material. This is because these statutes require that certain healthcare professionals must remove saliva for genetic testing. Yet, on closer analysis, such an apparent ban on the self-collection of saliva is neither aligned with a purposive interpretation of the relevant legislation, nor would it survive constitutional scrutiny – as it impedes an individual's autonomy. It is concluded that, contrary to a plain reading of the relevant statutes, in...
South African Law Journal, 2020
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Humanities & social sciences communications, Feb 10, 2024
After a 3-year development process and several drafts, the Academy of Science of South Africa (AS... more After a 3-year development process and several drafts, the Academy of Science of South Africa (ASSAf) has submitted its proposed Code of Conduct for Research (proposed CCR) to the South African Information Regulator for its consideration and approval. When approved, the proposed CCR will be an important legal instrument that will complement the Protection of Personal Information Act 4 of 2013 (POPIA) in governing research activity in the countryincluding data sharing by South African researchers with their collaborators in other countries. The proposed CCR resolves important issues that were present in previous drafts. However, three important issues require attention: (1) how the identifiability of data subjects is to be determined in research data; (2) how research data can be repurposed for commercial use; and (3) how open access genomic databases should be established in the South African legal framework. In addition, the proposed CCR introduces a new issue: a legally unsustainable exception from POPIA application for genetic data. All these issues considered, the proposed CCR needs revision ahead of its approval by the Information Regulator. Recommendations are made on how to resolve the remaining issues.
The South African law journal, 2024
South African Journal of Bioethics and Law, Dec 19, 2023
This open access article is distributed under Creative Commons licence CC-BY-NC 4.0.
Frontiers in Pharmacology, Dec 13, 2023
The integration of artificial intelligence (AI) into healthcare in Africa presents transformative... more The integration of artificial intelligence (AI) into healthcare in Africa presents transformative opportunities but also raises profound legal challenges, especially concerning liability. As AI becomes more autonomous, determining who or what is responsible when things go wrong becomes ambiguous. This article aims to review the legal concepts relevant to the issue of liability for harm caused by AI in healthcare. While some suggest attributing legal personhood to AI as a potential solution, the feasibility of this remains controversial. The principal-agent relationship, where the physician is held responsible for AI decisions, risks reducing the adoption of AI tools due to potential liabilities. Similarly, using product law to establish liability is problematic because of the dynamic learning nature of AI, which deviates from static products. This fluidity complicates traditional definitions of product defects and, by extension, where responsibility lies. Exploring alternatives, risk-based determinations of liability, which focus on potential hazards rather than on specific fault assignments, emerges as a potential pathway. However, these, too, present challenges in assigning accountability. Strict liability has been proposed as another avenue. It can simplify the compensation process for victims by focusing on the harm rather than on the fault. Yet, concerns arise over the economic impact on stakeholders, the potential for unjust reputational damage, and the feasibility of a global application. Instead of approaches based on liability, reconciliation holds much promise to facilitate regulatory sandboxes. In conclusion, while the integration of AI systems into healthcare holds vast potential, it necessitates a re-evaluation of our legal frameworks. The central challenge is how to adapt traditional concepts of liability to the novel and unpredictable nature of AI-or to move away from liability towards reconciliation. Future discussions and research must navigate these complex waters and seek solutions that ensure both progress and protection.
Frontiers in Pharmacology, Nov 22, 2023
The use of pseudonymised datasets is increasingly commonplace as research institutions seek to ba... more The use of pseudonymised datasets is increasingly commonplace as research institutions seek to balance data utility with data security. Yet, a crucial question arises: How does South Africa's Protection of Personal Information Act (POPIA) govern these datasets, especially given their ambiguous state between deidentification and possible re-identification? A thorough examination of POPIA suggests that the determination of whether a pseudonymised dataset is personal information-and thus whether processing the dataset falls within POPIA's purview-must be informed by the specific context of the responsible party in possession of the pseudonymised dataset. When a research institution retains both the pseudonymised dataset and its linking dataset, the pseudonymised dataset remains identifiable and is thus personal information that falls within POPIA's purview. However, when only the pseudonymised dataset-without the linking dataset-is transferred to another entity, it is non-personal information in the hands of such a recipient, thus freeing the recipient from POPIA compliance. Such a delineation offers research institutions greater flexibility in sharing and using pseudonymised datasets. Importantly, because the original provider of the pseudonymised dataset (who has the means to reidentify the dataset) remains governed by POPIA, the privacy rights of data subjects are not undermined.
Frontiers in Genetics, Oct 1, 2023
The Draft National Open Science Policy, which was shared by the South African government with sta... more The Draft National Open Science Policy, which was shared by the South African government with stakeholders in 2022, is an encouraging step forward as it aims to promote the practice of open science in South Africa through a system of incentives. Since South Africa is constitutionally committed to be an open and democratic society, this approach is preferable to the approach of state control that characterizes the Draft National Policy on Data and Cloud-another datarelated policy initiative by the South African government. However, there is room for improvement in the Draft National Open Science Policy. In particular, it should: (a) rely on the right to freedom of scientific research to strengthen the policy; (b) rectify the omission of ownership from its policy analysis; and (c) retain a clear differentiation between human and non-human genetic data. This will ensure that the final policy is clearly anchored in the South African Constitution, and that the principle of "as open as possible, as closed as necessary" can be applied to human genetic data in a legally well informed and accountable way.
Sustainable development goals series, Dec 31, 2022
South African Medical Journal, Jun 1, 2022
South African (SA) gamete banks and gamete donation agencies do not offer open-identity donors, a... more South African (SA) gamete banks and gamete donation agencies do not offer open-identity donors, as it is generally believed that donor anonymity is a legal requirement in SA. However, analysis of SA statutory instruments and case law shows that this belief is mistaken, and that gamete donation in SA can be anywhere on the spectrum between anonymous and known. Accordingly, open-identity gamete donation would be lawful in SA and can be offered to the public by SA gamete banks and gamete donation agencies.
South African Law Journal, 2022
Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short Palindromic Repeat... more Patenting activity regarding new CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats) genome editing technology has mushroomed to create a vast and complex patent landscape. However, because of South Africa’s current depository patent system, the South African CRISPR patent landscape contains foundational patents with overlapping claims, as highlighted by the ongoing litigation in the United States between the Broad Institute and the University of California. Both these parties were granted four patents in South Africa. Also, the South African landscape may contain multiple low-quality patents that have the potential to obstruct scientific research in South Africa. The solution in the South African context is threefold, but requires that the Intellectual Property Policy of South Africa: Phase I must first be operationalised to: (a) prioritise CRISPR patent applications for formal examination and substantive search and examination; (b) provide sufficient resources for extracurial patent opposition proceedings regarding all CRISPR patent applications and granted patents; and (c) create certainty by developing an obviousness standard with well-defined parameters. Although CRISPR is not yet advanced enough to fall within the class of life-saving technologies in the short-term, CRISPR may become critical in the treatment and eradication of priority diseases such as HIV/AIDS and tuberculosis. Accordingly, prioritising CRISPR-related patent applications serves the public interest in access to healthcare. By using (a), (b) and (c) in tandem, a triple layer of mechanisms will counter the problems of overlapping claims and of lowquality patents, and hence remove these potential obstructions to CRISPR research in South Africa.
Developing World Bioethics, May 16, 2023
South African Law Journal, 2020
In this case note we make two salient observations regarding the recent Supreme Court of Appeal j... more In this case note we make two salient observations regarding the recent Supreme Court of Appeal judgment in Beukes v Smith. First, the judgment shows that when assessing alleged wrong fulness, the court is concerned with whether the health-care user did in fact provide informed consent, and not with formalities such as making notes of consultations. Secondly, the SCA assumed that the health-care user was using pain medication, and further assumed that she was not attentive during the consultation; hence her version of events was rejected. This line of assumption-based reasoning introduces a new anti-patient prejudice in our law, which is clearly unconstitutional, and should be rectified by the SCA at the earliest opportunity.
Frontiers in pharmacology, Mar 12, 2024
MTA was controversial from the outset (Thaldar, 2020; Thaldar et al., 2020). The notion of the st... more MTA was controversial from the outset (Thaldar, 2020; Thaldar et al., 2020). The notion of the state in a supposedly open and democratic society, forcing the use of a single template onto everyone is clearly suspect. The situation could, however, have been palatable had the SA MTA been a well-drafted document. However, it was not. Thaldar et al. (2020) highlighted several problems with the SA MTA, ranging from misalignment with extant law to absurdly overbroad clauses. The only saving grace was that the SA MTA described itself as a "framework," hence leaving latitude for parties that are legally forced to use it to amend the substantive provisions-and hopefully in the process resolve the problematic aspects (
South African Medical Journal
Bronstein and Nyachowe recently argued that the conditions for the lawful processing of personal ... more Bronstein and Nyachowe recently argued that the conditions for the lawful processing of personal information, as provided in the Protection of Personal Information Act 4 of 2013 (POPIA), do not apply to health research in South Africa. This article critically analyses the authors’ interpretation of section 3(2)(b) of POPIA and challenges two of its aspects.
Bioethics, Jun 17, 2023
In 2021, the WHO Expert Advisory Committee on Developing Global Standards for Governance and Over... more In 2021, the WHO Expert Advisory Committee on Developing Global Standards for Governance and Oversight of Human Genome Editing (the ‘Committee’) published its policy recommendations. It proposes, inter alia, a set of nine values and principles to inform the governance of human genome editing (HGE) and makes recommendations regarding how HGE can be regulated. While these proposals contain valuable contributions to the discourse on the global governance of HGE, they also contain elements that call for heightened attention to the risks of the technology, and a countervailing focus on the potential benefits of the technology is missing. The Committee ostensibly prioritises restricting HGE technology in the interest of society as a collective but, in doing so, neglects to consider the interests and rights of individuals. In this article, we suggest that this approach is imbalanced insofar as it fails to give sufficient weight to the promise of this technology in considering the regulation of risks and disregards the importance of the fundamental liberties underlying the use of HGE in its discussion of values and principles that should guide governance. How this is problematic is illustrated with reference to the Committee's openness to using patents as HGE governance tools and its blanket rejection of ‘eugenics’. It is concluded that while the Committee makes some sensible recommendations on global governance, the Committee's approach of emphasising restrictions on HGE without also giving weight to the value of an open and liberal policy space is not something that liberal democratic states ought to follow.
Frontiers in Genetics
This article revisits the debate on the regulation of human genomic research, with a focus on Afr... more This article revisits the debate on the regulation of human genomic research, with a focus on Africa. The article comprehensively examines the concept of genomic sovereignty, which was invoked mainly in the global South as a conceptual framework for state regulation of human genomic research. It demonstrates that genomic sovereignty has no utility value in human genomic research as it violates the rights of individuals and researchers. By analysing Mexico’s regulatory approach based on genomic sovereignty and a divergent regulatory approach, viz Finland’s human genomic research framework, we show that a human rights approach is more promising as it aligns with the state obligations under the right of everyone to participate in and benefit from scientific progress and its applications in international human rights law. We conclude by recommending that African states should anchor regulation of human genomic research on a human rights framework based on the right to science.
South African Journal of Bioethics and Law
Background. South African surrogacy law includes a provision, known as the genetic link requireme... more Background. South African surrogacy law includes a provision, known as the genetic link requirement, that commissioning parents must use their own gametes for the conception of a surrogate child. As a result, infertile persons who cannot contribute gametes for the conception of a child are prohibited from accessing surrogacy as a way to establish families. The genetic link requirement was previously the subject of a constitutional challenge, but the challenge was rejected by a divided Constitutional Court bench with a seven-to-four majority. The genetic link requirement is again being challenged in a new lawsuit.Objective. In light of the history of the issue, this article investigates the viability of relying on infertile persons’ right to family life in the new lawsuit. Method. The investigation takes the form of a human rights analysis.Results. The right to family life was not considered in the previous case. As such, the right to family life constitutes a new legal issue that fa...
Humanities and Social Sciences Communications
The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surro... more The regulation of surrogacy in South Africa centres on a scheme of judicial confirmation of surrogacy agreements before the start of the surrogate pregnancy. If such confirmation is granted by the court, actions taken in the execution of the surrogacy agreement are lawful, and the agreement itself is enforceable. Against this background, the question has arisen: is it lawful to perform in vitro fertilisation (IVF) before confirmation of the surrogacy agreement? This is a salient question: In circumstances where egg retrieval needs to take place in anticipation of surrogacy, and where sperm is available but where the surrogacy agreement has not (yet) been confirmed, there are significant clinical advantages to first creating embryos through IVF before cryopreservation—rather than cryopreserving the eggs. However, in the recent case of Ex ParteMCM, the court held that it is unlawful to perform IVF in anticipation of surrogacy where the surrogacy agreement has not (yet) been confirmed....
Stellenbosch Law Review
The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor wh... more The recent case of QG v CS (32200/2020) 2021 ZAGPPHC 366 (17 June 2021) concerns a sperm donor who applied to the court for parental responsibilities and rights in respect of a child conceived with his sperm. This is despite the fact that he had concluded a written agreement with the child’s legal parents before the child’s conception which stipulated, inter alia, that he would have no such responsibilities and rights in respect of the child. The ruling of the High Court in this case is a significant development in South African reproductive law, as the first case that deals with the legal position of a sperm donor with regard to a donor-conceived child. The following important legal principles that were laid down in the case are identified and analysed. First, there is no prohibition on a sperm donor or his family members from approaching the court in terms of section 23 or 24 of the Children’s Act 38 of 2005 to acquire parental responsibilities and rights in respect of the donor-c...
Potchefstroom Electronic Law Journal
Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South Afri... more Despite the growing popularity of direct-to-consumer genetic testing, there is minimal South African literature on the topic. The limited available research suggests that direct-to-consumer genetic testing is unregulated. However, we suggest that direct-to-consumer genetic testing is indeed regulated, and unusually so. The first step in the process – the collection of a saliva sample by consumers themselves – is unlawful on a plain reading of the National Health Act 61 of 2003 and the Regulations Relating to the Use of Human Biological Material. This is because these statutes require that certain healthcare professionals must remove saliva for genetic testing. Yet, on closer analysis, such an apparent ban on the self-collection of saliva is neither aligned with a purposive interpretation of the relevant legislation, nor would it survive constitutional scrutiny – as it impedes an individual's autonomy. It is concluded that, contrary to a plain reading of the relevant statutes, in...
South African Law Journal, 2020
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